New Delhi: A 29-year-old anti-Sikh riots case came back to haunt senior Congress leader Jagdish Tytler with a Delhi court on Wednesday setting aside CBI`s closure report giving clean chit to him and ordering reopening of investigation into the killing of three persons.
The order on one of the 1984 anti-sikh riots case also came as an embarrassment for the CBI which was opposing the plea for further investigation as the court found fault with the probe by the agency which did not examine the available witnesses.
"The order of trial court accepting the closure report dated April 27, 2010 is set aside.
"CBI is directed to conduct further investigation in the light of aforesaid facts and to record the statements of witnesses, who it had come to know during the investigation itself, are claiming/shown/named to be the eye witnesses of the incident," Additional Sessions Judge Anuradha Shukla Bhardwaj said.
Today`s order came as a big jolt to Tytler, who had got a clean chit twice from the CBI which had closed the case.
The court said that CBI had an "obligation" to record the statement of US-based three persons, whose names were taken by an eye witness that they were also present with at the spot.
"The moment this statement of the witness was recorded irrespective of whether he was telling truth or lie, the investigating agency had an obligation to have recorded the statements of these persons or atleast to have made enquiry from them.
"We understand that the CBI reserves its right to conclude that these witnesses were planted and not truthworthy and thus to file a closure report giving its opinion on the issue, however, it did not have any right to have not recorded the statements of these witnesses and thus to have prevented the court from forming its own opinion regarding reliability of these witnesses," it said.
Facing flak for its probe, CBI said it will study the verdict before deciding the course of action.
Agency sources, meanwhile, maintained that they had sent a team to record the statement of the witness based in the US but his statements were not found to have any evidential value.
The court`s order came on a plea by the riot victims against the CBI giving a clean chit to Tytler and filing a closure report.
Senior advocate H S Phoolka, who had appeared for the
riot victims and complainant Lakhvinder Kaur whose husband Badal Singh was killed during the riots, had sought the court`s direction to the CBI to further investigate the case to ascertain Tytler`s alleged role in the riots.
The CBI had, however, sought dismissal of the victim`s plea saying the probe has made it clear that Tytler was not present on November 1, 1984 at Gurudwara Pulbangash in North Delhi where three people were killed during the riots and was rather at Teen Murti Bhawan, where Indira Gandhi`s body was lying in state.
The court also rejected CBI’s plea that one Resham Singh, who had approached the agency for recording his statement claiming to be an eye witness of the incident, was a "false and planted" witness.
"Unless CBI recorded the statement of Resham Singh who claims that he was eye witness of the incident, it cannot conclude that this witness is a planted or false or unreliable witness," the judge said.
Resham Singh, who is in the US, along with two others had approached the CBI to record their statements.
The court also refused to accept CBI contention that complainant Kaur had no "locus standi" in the petition as she was neither a witness nor a complainant in the main riot case.
"The right of Kaur was recognised by the magistrate before it and after hearing her order was passed, which was not to the satisfaction of the petitioner. If there were no remedy given to Kaur to challenge the said order, the very purpose of giving her the said right at the first instance would be frustrated.
"In view of the above, I conclude that the right of petitioner to file revision petition emanates from the right given to her by the order of the magistrate to contest the closure report, which remained unchallenged," the judge said.
Hours before the court was to pronounce the order, large number of riot victims gathered outside the court complex and raised slogans against Tytler and Congress leader Sajjan Kumar, against whom another court has already reserved its judgement in a riot case.
After the court`s verdict, the protesters rejoiced and cheered.
The CBI has sought closure of the case on the ground that the statements of eyewitness Surinder Singh, who had died, were contradictory and cannot be relied upon.
The court, however, rejected the contention citing a Supreme Court judgement in another 1984 riots case against Sajjan Kumar in which it was held that the contradictions in the statements of witnesses were a matter of trial and could not be considered even at the stage of charge to hold that a prima facie case is not made out against the accused.
"Going by the law laid down by the Supreme Court, the contradictions in the statements of witness Surinder Singh given at different point of time could not be analysed and read for or against any party at the stage of summoning, to hold that witness was not reliable," it said.
The sessions court pulled up the trial court which had accepted the CBI`s plea that witness Surinder was not reliable and as he has already died, the contradictions in his statements could not be explained and there would be no evidence against Tytler.
Citing the apex court`s judgement, the ASJ said the death of a witness could not be a ground to conclude that no evidence would come to corroborate the statements made by him.
"On the contrary, the trial court was required to consider if there was material on record which could corroborate the statements of the witness," the ASJ said.
Kaur in her plea had claimed that there are four persons, Resham Singh, Chanchal Singh, Alam Singh and Santosh Singh, who are the eyewitnesses of the incident.
Tytler`s alleged role in the case relating to killing of three persons -- Badal Singh, Thakur Singh and Gurcharan Singh -- near the Gurudwara Pulbangash was re-investigated by the CBI after a court had in December 2007 refused to accept its closure report.
CBI had given a clean chit to Tytler on April 2, 2009 claiming lack of evidence against him in the case pertaining to the murder of three persons on November 1, 1984, in the aftermath of the assassination of Indira Gandhi.
However, on April 27, 2010, a magistrate had accepted CBI`s closure report in the case against Tytler, saying there was no evidence to put him on trial.
The trial against another accused Suresh Kumar Paniwala is
going on and so far 13 prosecution witnesses have been examined in the case.
Paniwala is facing charged of murder and and inciting the mob during the riots.
The court had allowed CBI`s closure report saying Tytler was present at Teen Murti Bhawan and was not at the spot of crime and the contentions of CBI were justified by material, including some visual tapes and versions of some independent witnesses.
One of the witness, Jasbir (now residing in California), in an affidavit, had claimed before the Justice Nanavati Commission that he had heard Tytler on November 3, 1984, rebuking his men for the "nominal killings" carried out in the riots.
The court had rejected Jasbir`s version, saying he had deposed for something which took place on November 3 while the case related to an incident of November 1, 1984.
Some of the witnesses had alleged that during the riots, Tytler was instigating the mob to kill Sikhs, a charge strongly refuted by him.